Citation Nr: 0709468
Decision Date: 03/30/07 Archive Date: 04/16/07
DOCKET NO. 03-05 102 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for a sacroiliac deformity.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Counsel
INTRODUCTION
The veteran served on active duty from August 1997 to August
2001.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York, which granted service connection for a
sacroiliac deformity and assigned a 10 percent disability
evaluation effective from August 11, 2001. The veteran
appealed that decision, and the case was referred to the
Board for appellate review.
The Board notes that the veteran originally filed her claim
for service connection for a back disability in Syracuse, New
York. However, the RO in Buffalo, New York issued the August
2001 rating decision, and the case was subsequently
transferred to the jurisdiction of the RO in Detroit,
Michigan, which issued the February 2003 Statement of the
Case as well as the May 2003 Supplemental Statement of the
Case and then certified the appeal to the Board.
The veteran was scheduled for a Board hearing at her local RO
which was scheduled for March 2005; she did not appear
without explanation or further request for a hearing.
This case was previously before the Board in November 2005 at
which time it was remanded for administrative due process
matters and in order to schedule the veteran for a VA
examination. The actions requested in that remand have been
undertaken and the case has returned to the Board and is
ready for adjudication.
As noted in the Board's remand, the veteran discussed her
knee pain and gastrointestinal problems in her February 2003
VA Form 9. However, the August 2001 rating previously
considered and denied her claims for service connection for
bilateral knee pain and for colonic polyp, and the veteran
did not file a timely notice of disagreement for those
particular issues. It is unclear as to whether the veteran
intended to file an application to reopen her claims for
service connection for bilateral knee pain and for colonic
polyp. However, those matters are not currently before the
Board because they have not been prepared for appellate
review. Accordingly, those matters are referred to the RO for
appropriate action.
FINDINGS OF FACT
1. The veteran's sacroiliac dysfunction has not been shown
to be productive of moderate limitation of motion; muscle
spasm on extreme forward bending, loss of lateral spine
motion, unilateral, in standing position or severe with
listing of the whole spine to opposite side; positive
Goldthwaite's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteoarthritic
changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion.
2. When evaluated in 2001, forward flexion of the
thoracolumbar spine was greater than 60 degrees and the
combined range of motion of the thoracolumbar spine was
greater than 120 degrees; the clinical evidence is negative
for indications of muscle spasms or guarding severe enough to
result in an abnormal gait or abnormal spinal contour. The
clinical evidence reveals no findings of scoliosis, reversed
lordosis or abnormal kyphosis.
3. Pain has not been clinically noted or demonstrated on
range of motion testing; the clinical evidence does not
reveal indications of weakened movement, excess fatigability,
incoordination neurological impairment, loss of strength or
muscle atrophy.
CONCLUSION OF LAW
An evaluation in excess of 10 percent for sacroiliac
dysfunction is not warranted. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45,
4.59, 4.71a, Diagnostic Codes 5235-5243, 5292, 5294, 5295
(2001-2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Compliance with the Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), enacted on
November 9, 2000, emphasized the VA's obligation to notify
claimants of the information or evidence necessary to
substantiate a claim, and it affirmed the VA's duty to assist
claimants by making reasonable efforts to get the evidence
needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West 2002); see Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). In August 2001, the VA issued regulations to
implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2006).
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the agency of original
jurisdiction (AOJ) issues the initial unfavorable decision on
a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App.
112, 120 (2004). In this instance, VCAA notice letters were
sent to the veteran in March 2003 and November 2005, after
the claim had been adjudicated several times.
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). In this case, the RO did not provide the veteran
with notice of the VCAA before the initial adjudication in
this case. However, the RO did provide the veteran with
letters in 2003 and 2005 which meet the notification
requirements of the VCAA, prior to readjudicating her claim
in a November 2006 Supplemental Statement of the Case (SSOC).
Therefore, the Board finds that any defect with respect to
the timing of the VCAA notice requirement was harmless error.
In this regard, the Board notes that, while notice provided
to the veteran was not given prior to the first AOJ
adjudication of the claim, notice was provided by the AOJ
prior to the transfer and certification of the veteran's case
to the Board, and the content of the notice fully complied
with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b). After the notice was provided, the claim for an
increased evaluation was readjudicated in a SSOC. The
claimant has been provided with every opportunity to submit
evidence and argument in support of her claim and to respond
to VA notices. Viewed in context, the furnishing of the VCAA
notice after the decision that led to the appeal did not
compromise "the essential fairness of the [adjudication]."
Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005). The
veteran has had a "meaningful opportunity to participate
effectively" in the processing of her claim. Id., at 120-
21. Therefore, with respect to the timing requirement for
the VCAA notice, the Board concludes that to decide this
appeal would not be prejudicial to the claimant.
Requirements with respect to the content of a VCAA notice
have been satisfied in this case. Pursuant to 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b), the notice must (1) inform
the claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that the VA will
seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim.
This "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
Regarding the first element, in letters dated in March 2003
and November 2005, the RO informed the veteran that if she
felt her service-connected back disorder had increased in
severity beyond the rating assigned, she should submit
current medical evidence to support her claim.
Regarding the second element, in those VCAA letters, the RO
informed the veteran that it would obtain any VA medical
records or any private medical records if the veteran
completed a consent form for such records. Accordingly, VA
medical records dated from 2001 to 2006 are on file.
Regarding the third element, the RO informed the veteran to
complete the aforementioned consent form regarding private
records, and to tell the RO about any VA medical records that
she wanted the RO to obtain.
The VCAA notice letters that were provided to the veteran
also contained the "fourth element," inasmuch as the
veteran was fully notified of the need to give to VA any
evidence pertaining to her claim. In this regard, the RO has
also informed the veteran in the rating decision, statement
of the case, and supplemental statements of the case of the
reasons for the denial of her claim and, in so doing,
informed herof the evidence that was needed to substantiate
that claim.
All the VCAA requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). As noted above, because
each of the four content requirements of a VCAA notice has
been fully satisfied in this case, any error in not providing
a single notice to the appellant covering all content
requirements is harmless error. Mayfield v. Nicholson, 19
Vet. App. 103, 120-21 (2005); rev'd on other grounds,
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Since the veteran's claim in the present appeal is one for an
increased rating, only the 4th and 5th elements are relevant.
As noted above, the veteran was apprised of the type of
information and evidence necessary to substantiate her claim
for an increased rating, so the 4th element has been met and
this matter was discussed in the May 2003 and November 2006
SSOCs.
Regarding the 5th element, i.e., the effective date of
disability, this matter was discussed in the November 2006
SSOC. For the aforementioned reasons, VA has adequately
addressed the effective date issue.
The duty to assist the veteran also has been satisfied in
this case. All available service medical records as well as
VA medical records and an examination pertinent to the claim
on appeal are in the claims file and have been reviewed by
both the RO and the Board in connection with the veteran's
claim. In compliance with the statutory requirements of 38
U.S.C.A. § 5103A and 7105(d) as well as 38 C.F.R. § 3.103(b),
the VA has provided the veteran and her representative with a
SOC and SSOCs, informing them of the laws and regulations
relevant to the veteran's claim and, in particular, what was
needed to achieve a higher rating for her service-connected
condition. See Dingess, 19 Vet. App. at 473. For these
reasons, the Board concludes that the VA has fulfilled the
duty to assist the appellant in this case.
Factual Background
A rating decision dated in August 2001 granted service
connection for sacroiliac dysfunction and assigned a 10
percent disability evaluation effective from August 11, 2001,
the day after the veteran's discharge from service. That
determination was based on a review of the veteran's service
medical records, which revealed that she was treated for
sacroiliac dysfunction and low back pain in service
A VA examination conducted in June 2001 indicated that the
veteran complained of low back pain with intermittent
radiation to the right leg. Physical examination revealed
that she had normal gait and station. Range of motion
testing of the lumbar spine revealed forward flexion from 0
to 90 degrees; hyperextension from 0 to 15 degrees; and right
and left lateral flexion from 0 to 35 degrees, described by
the examiner as fully normal. The veteran was able to move
on and off the examination table without any difficulty.
Tendon reflexes were normal bilaterally. She had normal
sensation and normal muscle strength in both lower
extremities. There was no evidence of any major muscle group
atrophy or anatomical deformity of the lower extremities.
Straight leg raising was normal to 90 degrees without
difficulty. The examiner concluded that the examination was
normal and could not ascribe any physical diagnosis nor
attribute any physical impairment in conjunction with the
back.
X-ray films of the lumbar spine taken in April 2002 revealed
no significant osseous or articular abnormality involving the
lumbar spine. An August 2002 entry indicates that the
veteran was seen for complaints of back pain with tingling
and numbness of the right leg and foot. An entry signed in
October 2002 indicates that the veteran had been receiving
physical therapy and taking Naproxen, which she believes had
resulted in a 50% decrease in pain. It was noted that an MRI
(September 2002) had revealed a small central disc herniation
at L5-S1, which could not account for her symptoms. Another
entry dated in October 2002 indicated that the veteran was
treated for a diagnosis of low back pain with intermittent
mechanical lumbar traction.
A VA neurology consult record dated in June 2003 indicates
that the veteran was seen for re-evaluation of low back pain.
The veteran reported that her back was better. On
examination there was no back tenderness to pressure,
although some mild sciatic notch tenderness was noted.
Reflexes were symmetrical and brisk. There was no paresis of
any leg muscles. An impression of improved low back pain
with no evidence of radiculopathy was made.
The veteran was scheduled for VA examinations in December
2005 and February 2006, notice of the scheduled examinations
was mailed to the appellant at her address of record and she
was called by VA and reminded of the February 2006
appointment. She did not appear for either appointment and
the record indicated that there appeared to be some possible
problem relating to the veteran's address. A third
examination was scheduled for November 2006. The record
reflects that the veteran had notice of this examination and
elected to cancel the examination without providing any
explanation.
Legal Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4. The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. 38 C.F.R. § 4.7.
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41. Consideration of the whole-recorded history
is necessary so that a rating may accurately reflect the
elements of disability present. 38 C.F.R. § 4.2; Peyton v.
Derwinski, 1 Vet. App. 282 (1991). While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings. Where an increase in the
disability rating is at issue, the present level of the
veteran's disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage
and the functional loss with respect to all of these
elements. In evaluating disabilities of the musculoskeletal
system, it is necessary to consider, along with the schedular
criteria, functional loss due to flare-ups of pain,
fatigability, incoordination, pain on movement, and weakness.
DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss
may be due to absence of part, or all, of the necessary
bones, joints and muscles, or associated innervation, or
other pathology and evidenced by visible behavior of the
claimant undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40.
Pain on movement, swelling, deformity or atrophy of disuse as
well as instability of station, disturbance of locomotion,
interference with sitting, standing and weight bearing are
relevant considerations for determination of joint
disabilities. 38 C.F.R. § 4.45. Painful, unstable, or
malaligned joints, due to healed injury, are entitled to at
least the minimal compensable rating for the joint. 38
C.F.R. § 4.59.
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990). When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the benefit of the doubt
shall be given to the claimant. 38 U.S.C.A. § 5107(b). When
a reasonable doubt arises regarding service origin, such
doubt will be resolved in the favor of the claimant.
Reasonable doubt is doubt which exists because of an
approximate balance of positive and negative evidence which
does not satisfactorily prove or disprove the claim.
38 C.F.R. § 3.102. The question is whether the evidence
supports the claim or is in relative equipoise, with the
claimant prevailing in either event, or whether a fair
preponderance of the evidence is against the claim, in which
event the claim must be denied. See Gilbert, 1 Vet. App. at
54.
The veteran contends that she is entitled to an increased
evaluation for her sacroiliac deformity. Specifically, she
claims that the current evaluation assigned for her disorder
does not accurately reflect the severity of the
symptomatology associated with that disability.
The veteran is currently assigned a 10 percent disability
evaluation for sacroiliac deformity pursuant to 38 C.F.R. §
4.71a, Diagnostic Code 5294 (2002). Diagnostic Code 5294 was
the code formerly used to evaluate sacro-iliac injury and
weakness, which utilized the same rating criteria as
Diagnostic Code 5295 (used for the evaluation lumbosacral
strain), under which a 10 percent disability evaluation is
warranted for lumbosacral strain with characteristic pain on
motion. A 20 percent disability evaluation is contemplated
for a lumbosacral strain with muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in
standing position. A 40 percent disability evaluation is
warranted for a severe lumbosacral strain with listing of the
whole spine to opposite side, positive Goldthwaite's sign,
marked limitation of forward bending in standing position,
loss of lateral motion with osteoarthritic changes, or
narrowing or irregularity of joint space, or some of the
above with abnormal mobility on forced motion.
The Board notes that during the pendency of this appeal, VA
issued new schedular criteria for rating intervertebral disc
syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, which
became effective September 23, 2002. However, as there is no
medical evidence of intervertebral disc disease related to
the veteran's service-connected sacroiliac deformity, such
amendment is not relevant to the instant appeal.
VA subsequently amended the rating schedule again for
evaluating disabilities of the spine, contained in 38 C.F.R.
§ 4.71a, which became effective on September 23, 2003. The
new criteria for evaluating service-connected spine
disabilities are codified at newly designated 38 C.F.R. §
4.71a, Diagnostic Codes 5235 through 5243, and under the new
regulation code 5294 no longer exists. The Board notes that
consideration under the revised schedular criteria should not
be undertaken before such criteria became effective. The
effective date rule contained in 38 U.S.C.A. § 5110(g)
prevents the application of a later, liberalizing law to a
claim prior to the effective date of the liberalizing law.
That is, for any date prior to September 23, 2003, neither
the RO nor the Board could apply the revised rating schedule.
The veteran was notified of these regulation changes in the
November 2006 Supplemental Statement of the Case. Thus, the
Board's decision to proceed in adjudicating this claim does
not, therefore, prejudice the veteran in the disposition
thereof. See Bernard, 4 Vet. App. at 393-94.
Further, prior to September 23, 2003, Diagnostic Code 5292
provided for ratings based on limitation of motion of the
lumbar spine. When such limitation of motion is slight, a 10
percent rating is warranted; with moderate limitation of
motion, a 20 percent evaluation is warranted. When
limitation of motion is severe, a 40 percent rating is
warranted. The maximum rating under Code 5292 is 40 percent.
38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).
On September 26, 2003, revisions to the VA rating schedule
established a General Rating Formula for Diseases and
Injuries of the Spine. See 68 Fed. Reg. 166, 51454-51458
(August 27, 2003). Diagnostic Code 5236 provides that
sacroiliac injury and weakness should be evaluated under the
General Rating Formula for Diseases and Injuries of the
Spine.
Under the General Rating Formula for Diseases and Injuries of
the Spine, with or without symptoms such as pain (whether or
not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease, a 10
percent disability evaluation is contemplated when there is
forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, forward flexion
of the cervical spine greater than 30 degrees but not greater
than 40 degrees; or the combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; or, combined range of motion of the
cervical spine greater than 170 degrees but not greater than
335 degrees; or muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent
or more of the height.
A 20 percent disability evaluation is contemplated when there
is forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 6 degrees; or, forward flexion
of the cervical spine greater than 15 degrees but not greater
than 30 degrees; or the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. A 30 percent evaluation is
for assignment when there is forward flexion of the cervical
spine 15 degrees or less; or favorable ankylosis of the
entire cervical spine. A 40 percent evaluation is warranted
when there is unfavorable ankylosis of the entire cervical
spine; or, forward flexion of the thoracolumbar spine 30
degrees or less; or, favorable ankylosis of the entire
thoracolumbar spine.
Note 1 to this provision provides that associated objective
neurological abnormalities, including, but not limited to,
bowel or bladder impairment, should be evaluated separately,
under an appropriate diagnostic code. See 38 C.F.R. § 4.71a,
General Rating Formula for Diseases and Injuries of the
Spine, Note (1) (2006).
Further, for VA compensation purposes, normal forward flexion
of the thoracolumbar spine is zero to 90 degrees, extension
is 0 to 30 degrees, left and right lateral flexion are zero
to 30 degrees, and left and right lateral rotation are zero
to 30 degrees. The normal combined range of motion range of
motion of the cervical spine is 340 degrees and of the
thoracolumbar spine is 230 degrees. The normal ranges of
motions for each component of spinal motion provided in this
note are the maximum that can be used for calculation of the
combined range of motion. See 38 C.F.R. § 4.71a, General
Rating Formula for Diseases and Injuries of the Spine, Note
(2) (2006). See also 38 C.F.R. § 4.71a, Plate V (2006).
Unfavorable ankylosis is a condition in which the entire
cervical spine, the entire thoracolumbar spine, or the entire
spine is fixed in flexion or extension, and the ankylosis
results in one or more of the following: difficulty walking
because of a limited line of vision; restricted opening of
the mouth and chewing; breathing limited to diaphragmatic
respiration; gastrointestinal symptoms due to pressure of the
costal margin on the abdomen; dyspnea or dysphagia;
atlantoaxial or cervical subluxation or dislocation; or
neurological symptoms due to nerve root stretching. Fixation
of a spinal segment in neutral position (zero degrees) always
represents favorable ankylosis. See 38 C.F.R. § 4.71a,
General Rating Formula for Diseases and Injuries of the
Spine, Note (5) (2006).
In considering the evidence of record under the older rating
criteria found under Diagnostic Code 5294-5295, the Board
concludes that the veteran is not entitled to an increased
evaluation for her sacroiliac deformity. Neither the 2001
examination report nor any VA medical records dated from 2001
to 2006 document muscle spasm on extreme forward bending, or
in fact at all. Moreover, the aforementioned evidence
revealed no symptomatology consistent with loss of lateral
spine motion, unilateral, in standing position. Accordingly,
a 20 percent evaluation is not warranted under DC 5294-5295.
Similarly, the medical evidence of record does not show the
veteran to have symptoms consistent with the criteria for the
assignment of a 40 percent evaluation under DC 5294-5295,
namely, listing of the whole spine to opposite side, a
positive Goldthwaite's sign, marked limitation of forward
bending in standing position, loss of lateral motion with
osteoarthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion.
When the evidence in this case is considered under the
schedular criteria of Diagnostic Code 5292, the Board finds
that the evidence of record does not establish entitlement to
an increased evaluation for the veteran's sacroiliac
deformity. The medical evidence of record does not show the
veteran have moderate limitation of motion of the lumbar
spine. In this regard, range of motion testing of the lumbar
spine conducted in 2002 revealed forward flexion to 90
degrees; extension to 15 degrees; and lateral bending of 35
degrees in each direction. The examiner described the
veteran's ranges of motion as entirely normal. The Board
notes that extension and side to side motion are clearly
full, but it appears that some slightly decreased extension
was shown. However, at most the degree of limited motion
shown is slight. The record contains no subsequent range of
motion test results.
The Board notes that, as of 2001, there was no specific
measure of the range of motion of the lumbar spine included
in the regulations used to evaluate disabilities of the
spine. However, range of motion measurements were added with
the September 2003 change in regulations. See Plate V, 38
C.F.R. § 4.71a (2006). While the substantive change in
regulations from September 2003 cannot be used to evaluate
the veteran's level of disability prior to the change, the
range of motion measurements from Plate V are instructive in
understanding the given range of motion measurements and how
they relate to the terms used in the earlier rating criteria-
"slight" or "moderate." In regards to the thoracolumbar
spine, a full range of motion for forward flexion is 90
degrees, backward extension is to 30 degrees, left and right
lateral flexion is to 30 degrees, and left and right rotation
is to 30 degrees. See 38 C.F.R. § 4.71a, Plate V (2006).
Inasmuch as the 2001 range of motion findings revealed at
least or more than full range of motion in all but extension
(which showed only slight to moderate impairment in and of
itself), the medical evidence of record indicates that the
impairment overall is best described as slight. Therefore,
the Board finds that the veteran has not met the criteria for
an increased evaluation under Diagnostic Code 5292.
When the evidence of record is considered under the revised
rating schedule that became effective on September 23, 2003,
the Board also finds that a 20 percent rating is not
warranted. The veteran's forward flexion of the
thoracolumbar spine is greater than 60 degrees (as measured
in 2001), and her combined range of motion of the
thoracolumbar spine, even without a measurement of range of
motion for rotation, is greater than 120 degrees (again as
measured in 2001). Nor (as previously noted) is there is any
indication of muscle spasms or guarding severe enough to
result in an abnormal gait or abnormal spinal contour.
Further the clinical evidence reveals no findings of
scoliosis, reversed lordosis or abnormal kyphosis. In
addition, there is no evidence of ankylosis of the spine, nor
does the evidence show that the veteran has any associated
neurological abnormalities. See General Rating Formula, Note
1. Accordingly, the Board finds that a rating in excess of
10 percent is not warranted under the General Rating Formula.
38 C.F.R. § 4.71a, DC 5237.
The Board has also considered the provisions of 38 C.F.R. §§
4.40, 4.45, 4.59, and the holdings in DeLuca, with respect to
possibility of whether an increased evaluation could be
assigned on the basis of functional loss due to the veteran's
subjective complaints of pain. See DeLuca v. Brown, 8 Vet.
App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg.
31,262 (1998). In this regard, the Board initially notes
that the veteran's subjective complaints of pain are
specifically contemplated in the criteria of DC 5294-5295.
The 2001 VA examination did not reveal that the veteran
evidenced any pain on range of motion testing or otherwise.
The evidence does not otherwise show any functional loss due
to pain to warrant a rating in excess of 10 percent. In
particular, the Board notes the lack of such findings as
neurological impairment, loss of strength and muscle atrophy.
The clinical evidence is not demonstrative of functional loss
due to fatigue, weakness, or lack of endurance, and the
Schedule does not require a separate rating for pain alone.
See Spurgeon v. Brown, 10 Vet. App. 194 (1997).
In summary, when the ranges of motion in the back are
considered together with the evidence relating to functional
loss, to include the absence of findings of neurological
deficits, muscle strength, and atrophy, the Board finds that
there is insufficient evidence of objective pain on motion,
or any other functional loss, to warrant a rating in excess
of 10 percent. DeLuca. Therefore, the Board finds that the
preponderance of the evidence is against an increased
evaluation for the veteran's sacroiliac dysfunction.
In the alternative, the Board also points out that the
veteran failed to report for examinations scheduled for
December 2005, February 2006, November 2006 without any
explanation (the Board notes that adequate notice was not
provided though in conjunction with the February 2006
examination). When the examination is scheduled in
conjunction with a reopened claim for a benefit which was
previously disallowed, or a claim for increase, the claim
shall be denied. 38 C.F.R. § 3.655(b) (2006). Thus,
although the claim has been denied on the merits, in the
alternative, the claim for an increased rating for a
sacroiliac deformity must also be denied pursuant to the
aforementioned provisions of 38 C.F.R. § 3.655(b).
As discussed above, the veteran's failure to report for
scheduled VA examinations has impeded the development of a
more complete record, which might have provided a basis for
the Board to grant the claim on appeal. As has been held by
the Court of Appeals for Veterans Claims, "[t]he duty to
assist in the development and adjudication of a claim is not
a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522
(1996). "If a [claimant] wishes help, he cannot passively
wait for it in those circumstances where he may or should
have information that is essential in obtaining the putative
evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
See also Olson v. Principi, 3 Vet. App. 480, 483 (1992).
Given the RO's efforts to date, it would be unreasonable to
place a burden upon VA to turn up heaven and earth in an
attempt to secure further cooperation from the claimant. See
Hyson v. Brown, 5 Vet. App. 262, 265 (1993).
ORDER
An evaluation in excess of 10 percent for sacroiliac
dysfunction is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs